TMI Blog1979 (12) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Delhi Development Act, 1957. The Act was enacted to provide for the development of Delhi according to plan and for matters ancillary thereto any for carrying out the objects underlying the Act, the Authority has prepared Master and Zonal development plans for Delhi. With a view to easing the acute housing problems in the capital city the Authority undertakes construction of dwelling units for people belonging to different income groups styled as Middle Income Group ('MlG' for short), Low Income Group ('LIG' for short), Janta and Community Personnel Service ('CPS' for short). In 1971 the Authority commenced registration of intending applicants desirous of having a dwelling unit in different income groups. Some of the petitioners got themselves registered with the authority in accordance with the terms and conditions laid down by it and made the initial deposits as required by the terms and conditions. Petitioners had applied and got themselves registered for allotment of flats in MIG scheme situated at Lawrence Road. As the number of available flats in this scheme were less than the number of allottees registered, lots were drawn and the petitioners wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the interest at the rate of 12% per annum from the date of levy and collection till the date of refund. 3. In the cognate petition the petitioners are allottees of flats situated at Prasad Nagar and Rajouri Garden under MIG scheme and they complain that in their case surcharge varies from ₹ 19,200/- to ₹ 22,600/-. 4. Respondents to the petition are Delhi Development Authority, No. 1 and Chairman and Vice-Chairman of the Authority, Nos. 2 and 3 respectively. In Writ Petition No. 4660/78 the Authority is respondent 1 and Union of India, respondent 2. Petitions were mainly contested by and on behalf of the Authority. 5. The Delhi Development Act, 1957 ('Act' for short), was enacted as its long title shows with the a view to providing for the development of Delhi according to the plan and for arresting haphazard growth and for matters ancillary thereto. It envisages the setting up of an Authority to be styled as Delhi Development Authority which would be a body corporate by the name aforesaid having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable, and to contract a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation so made may be altered or rescinded by the Authority in exercise of its powers under Sub-section (1). Section 58 makes it obligatory to lay every rule and regulation made under this Act before each House of Parliament in session for a period of 30 days and subject to any alteration or modification therein, the rule or regulation shall after expiry of the prescribed period mentioned have effect only In such modified form or be of no effect as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under the rule or regulation. 6. Petitioners belong to MIG, each of whom registered himself as an intending applicant for a flat in MIG scheme and each of whom has been allotted a flat either in Rajouri Garden, Prasad Nagar or Lawrence Road. Number of persons desirous of having a flat registered with the Authority far outnumbered the available flats with the result that lots had to be drawn and the lucky ones got a letter of allotment to pay the price set out in the brochure in respect of each scheme and to obtain a flat. Each petitioner had paid the price and has entered into possession o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such gross discrimination by a statutory authority charged with a duty to provide housing accommodation acting on the declared policy of 'no profit no loss', it was simultaneously contended that the Vice-Chairman of the Authority authorised to determine the prices of flats in each income group has not made any order or has not given any direction for levying surcharge and that the levy of surcharge was wholly unauthorised. 7. A preliminary objection was raised by the Authority that the petitions are not maintainable under Article 32 of the Constitution inasmuch as the petitioners have not come to the Court for enforcement of a fundamental right conferred upon the petitioners under Part III of the Constitution but the petitioners have invoked jurisdiction of this Court for a relief of re-opening concluded contracts. It was also submitted that if the Court accepts the contention of the petitioners they would derive an unfair advantage over others who may not have applied for flats because of the price set out in the brochure and if surcharge is excluded they may have applied for flats at a lower price and, therefore, also the Court should not entertain the petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied and obtained flats. How the seller works out his price is a matter of his own choice unless it is subject to statutory control. Price of property is in the realm or contract between a seller and buyer. There is no obligation on the purchaser to purchase the flat at the price offered. Even after registration the registered applicants may opt for other schemes. His right to enter into other scheme opting out of present offer is not thereby jeopardised or negatived and applicants so outnumbered the available flats that lots had to be drawn. With this background the petitioners now contend that the Authority has collected surcharge as component of price which the Authority was not authorised or entitled to collect. Even if there may be any merit in this contention, though there is none, such a relief of refund cannot be the subject-matter of a petition under Article 32. And Article 14 cannot camouflage the real bone of contention. Conceding for this submission that the Authority has the trappings of a State or would be comprehended in 'other authority' for the purpose of Article 12, while determining price of flats constructed by it, it acts purely in its executive capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting party finds it prudent to abide by the terms of the contract. By such a test no contract would ever have a binding force. The jurisdiction of this Court under Article 32 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. It would thus appear that petitions ought not to have been entertained. However, as the petitions were heard on merits, the contentions canvassed on behalf of the petitioners may as well be examined. 9. The principal contention canvassed on behalf of the petitioners is that the treatment meted to them by the Authority is discriminatory inasmuch as no surcharge was levied on flats in MIG scheme constructed and allotted prior to November 1976 and after January 1977. MIG flats involved in these petitions were constructed and were available for allotment in November 1976 and the lots were drawn in January 1977. There is one more MIG scheme at Munirka where the allotment took place at or about the same time but in which case no surcharge was levied. The contention is that once for the purpose of eligibility to acquire a flat, the criterion is grounded in income brackets, MIG, LIG, et et. those in the same inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-group-wise according to the same price formula is to expect the Authority to ignore time, situation, location and other relevant factors which all enter the price structure. In price fixation executive has a wide discretion and is only answerable provided there is any statutory control over its policy of price fixation and it is not the function of the Court to sit in judgment over such matters of economic policy as must be necessarily left to the Government of the day to decide. The experts alone can work out the mechanics of price determination; Court can certainly not be expected to decide without; the assistance of the experts (See Prag Ice and Oil Mills and Anr. etc. v. Union of India 1978CriLJ1281a ). In the leading judgment it has been observed that mechanics of price fixation have necessarily to be left to the executive and unless it is patent that there is hostile discrimination against a class the processual basis of price fixation has to be accepted in the generality of cases as valid. This Court in Avinder Singh v. State of Punjab [1979]1SCR845 , approved the following dictum of Willis on Constitutional Law, page 587: The State does not have to tax everythi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny place and executed at any time will form one class for the purpose of pricing policy. Only valid basis for classification would be income-wise, area-wise, time-wise, scheme-wise, meaning all flats constructed at or about the same time in same area in one project for particular income-group will form a class. And there is no discrimination amongst them. 12. Pricing policy is an executive policy. If the Authority was set up for making available dwelling units at reasonable price to persons belonging to different income-groups it would not be precluded from devising its own price formula for different income-groups. If in so doing it uniformly collects something more than cost price from those with cushion to benefit those who are less fortunate it cannot be accused of discrimination. In this country where weaker and poorer sections are unable to enjoy the basic necessities, namely, food, shelter and clothing, a body like the Authority undertaking a comprehensive policy of providing shelter to those who cannot afford to have the same in the competitive albeit harsh market of demand and supply nor can afford it on their own meagre emoluments or income, a little more from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Delhi, the integral part of it being construction of flats for different income-groups the motives and working of it would not be profit oriented but would work on 'no profit no loss' economic doctrine. This would not for a moment suggest that the principle of 'no profit no loss' should apply either to every flat or to every scheme or to every piece of land developed by the Authority. It would be impossible for the Authority to function on such fragmented basis and such a policy statement has not been made by the Authority. Of course, some public statement appears to have been made that the overall working of the Authority is on no profit no loss' basis. Respondent 1 has been able to point out that the Authority's housing scheme as a whole has been running in a heavy deficit because flats including such as those of the petitioners actually cost much more than the initially determined estimates and by the time flats are ready for occupation initial estimates founded on prevalent market prices of materials and labour escalate and revised estimates have to be made. It is also shown that till Municipal authority takes over municipal services the Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area the disposal price would be very high and would be beyond the reach of MIG. It is in this background of the special facts that no surcharge was levied in respect of any flat in MIG in Munirka area. Project-wise price fixation cannot be dubbed as arbitrary or discriminatory in comparison with other projects at different places. 16. It was, however, pointed out that 132 flats in Rajouri Garden MIG scheme were disposed of without levying surcharge as component of sale price. It is pointed out in affidavit in reply that these flats were handed over to the Government of India for meeting their needs for staff quarters and that was done in the year 1978. It is also pointed out that the Government charged half the price of the land in respect of these 132 flats and, therefore, surcharge was not levied. There is two-fold fallacy in this submission. Government ordinarily is in a class by itself and its needs of staff quarters deserve to be met in large public interest. Government has not got any undeserved benefit at the cost and risk of petitioners. Hence their complaint in this behalf is without merits. 17. It was next contended that surcharge is arbitrary inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s authorised the same it runs counter to the principle of fixing disposal price incorporated in Resolution No. 209 dated November 26, 1974. The Vice-Chairman is to be appointed by the Central Government as per Section 3(3)(b) of the Act. It appears that this Vice-Chairman is whole-time officer and will be the Chief Executive of the Authority. This becomes clear from Regulation 3 of the Regulations which provides as under: 3. These regulations shall be administered by the Vice-Chairman, subject to general guidance and resolutions of the Authority, who may delegate his powers to any officer of the Authority. Thus the Vice-Chairman, subject to general guidance and resolutions of the Authority, shall administer the regulations. He can delegate the functions to any officer of the Authority. Regulation 59 is important which reads as under: 59. The Authority may delegate all or any of its powers under these regulations to the Vice-Chairman or to a whole-time member. Armed with this power of delegation the Authority adopted Resolution No. 60 dated February 21, 1970 which reads as under: Resolved that the recommendations of the Committee be app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication as well as to fix the disposal and hire-purchase price were accepted. Resolution No. 209 is the one adopted by the Housing Committee. It takes note of the delegation of powers to fix disposal and hire-purchase price of flats to the Vice-Chairman and further provides that if there is a marginal saving in any scheme the amount is always diverted to subsidise cost of Janata and CPS houses. It seams the Resolution is for information of the Housing Committee and the Housing Committee has merely resolved that the information be noted. The Resolution No. 200 of the Authority with Resolution No. 209 of the Housing Committee sets out clearly that the power to fix the disposal price was delegated to the Vice-Chairman and ordinarily such excessive delegation to one man may be galling to a judicial body yet the scheme of regulations and the provisions contained in Regulation 3 read with Section 59 clearly envisages such delegation of powers. It is, therefore, idle to contend that the Vice-Chairman had no authority to levy the surcharge as component of disposal price of flats. 20. It was next contended that even if Vice-Chairman had such power there is nothing to show that he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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